October will soon be upon us and the Agency Worker Regulations (AWR) will be in force.

The purpose of the Directive is to provide temporary agency workers with equal treatment in terms of basic working and employment conditions as if they had been employed directly to do the same job. The implementation of the Directive will have major implications on the costs and use of agency workers for many companies.

In essence, at the outset of an assignment expected to last 12 weeks or more, the hiring company will need to identify what an equivalent permanent employee would be paid. This information is then given to the agency, which will then set the level of the worker’s pay.  There are further details about this below but the regulations are clear that the agency worker does not become an employee after the 12 weeks:

• Equal treatment for agency workers after they have been in an assignment with the same hiring company for a qualifying period of 12 weeks.  This includes pay, working hours, overtime, breaks, shifts or unsocial hours allowances, rest periods and holidays.
• From day one, agency workers are entitled to the same access to job vacancies as permanent members of staff and collective facilities such as staff canteens, childcare facilities and transport services.

• The hirer or agency should take account of the agency worker’s qualifications, skills and experience, as well as the terms and conditions of comparable employees to ascertain the correct level of pay.
• Tribunals can make an additional award of £5,000 for anyone attempting to circumvent the Regulations.
• If an agency worker’s role changes substantially during the term of the assignment, then they may not attract the equal treatment provisions.
• The hirer will be liable if they don’t give the agency worker the ‘day one’ rights, such as the use of collective facilities, but both the hirer and agency could be held liable for breaches of pay and conditions rights after 12 weeks

• If a worker does not receive equal treatment, the agency will be liable unless the information provided by the hiring company was not correct. If the new Regulations are ignored by an employer, the agency worker will be able to claim less favourable treatment and /or detrimental treatment with a potential unlimited compensation order.
• The Regulations do not make agency workers into employees but their aim is to protect low-paid workers from exploitation. However, many employers using agency workers are liable to experience an increase in costs caused by equal treatment requirements (particularly pay).

Business Secretary Vince Cable has highlighted the Government could make changes to strike laws should widespread strikes threaten the UK’s “social and economic fabric”.

The Public and Commercial Services Union (PCS) is currently balloting more than 250,000 civil and public servants on whether or not to strike over cuts to pensions, jobs and pay, and national strike action could be on the horizon as a result.

Cable said: “Later this month, we may very well witness a day of industrial action across significant parts of the public sector. The usual suspects will call for general strikes and widespread disruption … and another group of usual suspects will exploit the situation to call for a tightening of strike law.

“We are undoubtedly entering a difficult period. Cool heads will be required all round. Despite occasional blips, I know that strike levels remain historically low, especially in the private sector.”

Cable explained that, until March of this year, the number of days lost through strikes were lower than at any time since 1931 and that, should this pattern continue, the case for changing strike laws would not be compelling.

However, he added: “Should the position change, and should strikes impose serious damage to our economic and social fabric, the pressure on us to act would ratchet up.”

I hate to say that  I was a child when we had the strikes in the 70s and it was pretty horrific.  Let’s hope we don’t go there again!

The Day one obligations are minimal for most employers with the same access to facilities such as canteens.  Access to job vacancies may be harder to manage if workers are off site so this may be something to consider.  The main provisions are below and have greater importance for companies hiring long term temps through agencies. This is not usually the case and if it is something you do on a regular basis now is the time to review your requirements.

The main provisions are:

• Equal treatment for agency workers after they have been in an assignment with the same hiring company for a qualifying period of 12 weeks.  This includes pay, working hours, overtime, breaks, shifts or unsocial hours allowances, rest periods and holidays.

• From day one, agency workers are entitled to the same access to job vacancies as permanent members of staff and collective facilities such as staff canteens, childcare facilities and transport services.
• The hirer or agency should take account of the agency worker’s qualifications, skills and experience, as well as the terms and conditions of comparable employees to ascertain the correct level of pay.
• Tribunals can make an additional award of £5,000 for anyone attempting to circumvent the Regulations.
• If an agency worker’s role changes substantially during the term of the assignment, then they may not attract the equal treatment provisions.
• The hirer will be liable if they don’t give the agency worker the ‘day one’ rights, such as the use of collective facilities, but both the hirer and agency could be held liable for breaches of pay and conditions rights after 12 weeks

• If a worker does not receive equal treatment, the agency will be liable unless the information provided by the hiring company was not correct. If the new Regulations are ignored by an employer, the agency worker will be able to claim less favourable treatment and /or detrimental treatment with a potential unlimited compensation order.
• The Regulations do not make agency workers into employees but their aim is to protect low-paid workers from exploitation. However, many employers using agency workers are liable to experience an increase in costs caused by equal treatment requirements.

There are positive results for pay awards, with 52% of employers forecasting that they will be increasing employee pay over the coming 12 months, compared with 47% last quarter.   The average size of the predicted pay award for the next year increased from 2.3% last quarter to 2.5% but is still forecast to track below the rate of inflation.

According to a recent report, the main reason employers are predicting pay rises is an increase in their ability to pay, cited by 31% of organisations.

Malcom Edge, head of markets at KPMG, added: “Business confidence is growing in Europe with more than half of business leaders optimistic about growth through joint ventures, collaborations and acquisitions.

“As a result, business sectors such as UK manufacturers and exporters will continue to see growth through overseas demand. Making UK businesses resilient through cost reduction and efficient business models will help secure and prepare them for whatever may be on the horizon.”

A recent case Nixon versus Ross Coates Solicitors (shouldn’t they know better?!) …An HR manager’s post Christmas party gossip about the paternity of the claimant’s pregnancy amounted to harassment. The firm’s refusal to move the claimant away from the alleged harasser was discriminatory.

An EAT (Employment Appeal Tribunal) later disagreed with some of the tribunal’s findings and reduced the compensation but it’s still a cautionary tale.

Best way around it is to make a very clear statement about what will happen if any fights, abuse – bad behaviour of any kind – occurs at a company social event.  We have template statements to give staff if you need them.